Admissibility of Shareholder Claims under Investment Treaties

Présentation sur le site de l'éditeur : "This book addresses a growing problem in international law: overlapping claims before national and international jurisdictions. Its contribution is, first, to revisit two pillars of investment arbitration, i.e., shareholders' standing to claim for harm to the company's assets and the contract/treaty claims distinction. These two ideas advance interrelated (and questionable) notions of independence: firstly, independence of shareholder treaty rights in respect of the local company's national law rights and, secondly, independence of treaty claims in respect of national law claims. By uncritically endorsing shareholder standing in indirect claims and the distinctiveness of treaty claims, investment tribunals have overlooked substantive overlaps between contract and treaty claims. The book also proposes specific admissibility criteria. As opposed to strictly jurisdictional approaches to claim overlap, the admissibility approach allows consideration of a broader range of legal reasons, such as risks of multiple recovery and prejudice to third parties." Cover Half-title page Title page Copyright page Dedication Contents 1 Introduction 1.1 Shareholder Treaty Claims: Independence and Overlap 1.1.1 Protection of Assets under IIAs 1.1.2 Problems Deriving from Concurrent Entitlements 1.2 Addressing Substantive Overlaps 1.2.1 The Admissibility Approach 1.2.2 Other Possible Approaches 1.3 Scope 2 Admissibility in International Investment Law 2.1 The Admissibility Concept 2.1.1 Overview 2.1.2 Definition of Admissibility 2.1.3 Delimitation of Admissibility vis-à-vis Jurisdiction and Merits 2.1.4 Investment Tribunals’ Powers as Regards Admissibility Decisions 2.2 Admissibility Criteria Relating to Standing and the Cause of Action in Shareholder Claims 2.3 Conclusion 3 Mixed Claims Commissions and the Origins of Central Concepts 3.1 Mixed Claims Commissions 3.1.1 Mixed Claims Commissions in General 3.1.2 The Venezuelan and Mexican Commissions 3.2 Shareholder Standing, Causes of Action, and Damages before Claims Commissions 3.2.1 Shareholder Claims 3.2.2 Contract Claims and Treaty Claims 3.2.3 Damages Corollaries 3.2.3.1 Private Losses and International Claims 3.2.3.2 Double Recovery 3.3 Conclusion 4 Admissibility and Shareholder Standing 4.1 Shareholder Rights and the ICJ 4.1.1 Barcelona Traction 4.1.2 ELSI, Diallo, and the Barcelona Traction Principles 4.2 Shareholder Standing before Investment Tribunals 4.2.1 Development of the Prevailing Concepts 4.2.2 The Merits of the Claims 4.3 Conclusion 5 Damages in Shareholder Treaty Claims 5.1 Damages and Shareholder Standing 5.1.1 Overview 5.1.2 Recovery and the Corporate Structure 5.1.3 Third-Party Interests 5.2 Damages and the Cause of Action 5.2.1 Contract Damages and Treaty Damages? 5.2.2 Claims for the Same Damage before Different Jurisdictions 5.3 Conclusion 6 The Contract-Treaty Distinction 6.1 The Cause of Action in International Investment Law 6.1.1 Breach of Contract and Breach of Treaty 6.1.2 The Distinction between Contract and Treaty Claims 6.2 From Jurisdiction to Admissibility 6.2.1 Decisions on Jurisdiction and the Fundamental Basis of the Claim 6.2.2 The Impact of Contractual Forum Selection Clauses on Admissibility 6.2.3 Competing Claims 6.3 Interactions between Treaties and Contracts 6.3.1 The Role of Contracts in Treaty Claims 6.3.2 Umbrella Clauses 6.3.3 Privity Without Obligations? 6.4 Conclusion 7 Applicable Law 7.1 Applicable Law in Investment Arbitration 7.1.1 The Sources of International Investment Law 7.1.2 The Role of National Law before Investment Tribunals 7.1.3 The Law Applicable to the Admissibility of Shareholder Treaty Claims 7.2 Conclusion 8 Conclusion Bibliography Articles, Books, Chapters, Theses, and Papers Other Sources List of Cases List of Treaties and Other Instruments Treaties Other Instruments Index Présentation sur le site de l'éditeur : "This book addresses a growing problem in international law: overlapping claims before national and international jurisdictions. Its contribution is, first, to revisit two pillars of investment arbitration, i.e., shareholders' standing to claim for harm to the company's assets and the contract/treaty claims distinction. These two ideas advance interrelated (and questionable) notions of independence: firstly, independence of shareholder treaty rights in respect of the local company's national law rights and, secondly, independence of treaty claims in respect of national law claims. By uncritically endorsing shareholder standing in indirect claims and the distinctiveness of treaty claims, investment tribunals have overlooked substantive overlaps between contract and treaty claims. The book also proposes specific admissibility criteria. As opposed to strictly jurisdictional approaches to claim overlap, the admissibility approach allows consideration of a broader range of legal reasons, such as risks of multiple recovery and prejudice to third parties." "International investment law is a young field with inconsistent decisions on important aspects of jurisdiction and the merits. Yet investment tribunals share two central premises as regards shareholder claims: i) that shareholders are entitled to claim for damages vis-àvis measures taken against the company1 in which they hold shares and ii) that 'contract claims' differ from 'treaty claims'. However, shareholder and company rights and treaty and contract claims are connected in important ways. Investment tribunals have generally failed to deal with the fact that company and shareholder rights under national and international law may refer to the same assets and damages. Shareholder claims under investment treaties for state measures against the company's assets are intertwined with related contract/national law claims, in particular regarding the substance of the claims"-- Provided by publisher